VARGAS-MARRERO v. PENNSYLVANIA DEPARTMENT OF CORRECTIONS

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JOSE RAUL VARGAS-MARRERO, :

Plaintiff, :

:

v. : CIVIL ACTION NO. 22-CV-2342

:

PENNSYLVANIA DEPARTMENT :

OF CORRECTIONS, et al., :

Defendants. :

MEMORANDUM

SÁNCHEZ, C.J. AUGUST 8, 2022

Plaintiff Jose Raul Vargas-Marrero, a convicted prisoner currently housed at SCI

Phoenix, filed this civil rights Complaint naming as Defendants the Pennsylvania Department of

Corrections (“DOC”), A. Jordan (identified in the Complaint as a Unit Counselor), M. Fedder

(identified as a Unit Manager), Kirin (identified as a Sergeant), and Hale (identified as a

Correctional Officer). The individually named Defendants are sued in their official and

individual capacities. Vargas-Marrero also seeks leave to proceed in forma pauperis. For the

following reasons, the Court will grant Vargas-Marrero leave to proceed in forma pauperis and

dismiss his Complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).

I. FACTUAL ALLEGATIONS

The allegations in Vargas-Marrero’s Complaint are extremely brief. Vargas-Marrero

avers that the events giving rise to his claims started in October 2021 when Correctional Officer

Hale spit in his food. (Compl. (ECF No. 1) at 4.)1 Other than this one assertion as to Defendant

Hale, there are no specific allegations in the Complaint as to what any of the other individually

1 The Court adopts the pagination supplied by the CM/ECF docketing system.

named Defendants did to violate his constitutional rights. Rather, Vargas-Marrero generally

avers that he was denied legal representation and outside contact and asserts that Defendants

violated his rights by “not following protocols.” (Id. at 3-4.) Vargas-Marrero seeks monetary

damages in an “undisclosed amount” for mental and emotional suffering. (Id. at 5.)

II. STANDARD OF REVIEW

The Court will grant Vargas-Marrero leave to proceed in forma pauperis because it

appears that he is incapable of paying the fees to commence this civil action.2 Accordingly, 28

U.S.C. § 1915(e)(2)(B)(ii) requires the Court to dismiss Vargas-Marrero’s Complaint if it fails to

state a claim. Whether a complaint fails to state a claim under § 1915(e)(2)(B)(ii) is governed by

the same standard applicable to motions to dismiss under Federal Rule of Civil Procedure

12(b)(6), see Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999), which requires the

Court to determine whether the complaint contains “sufficient factual matter, accepted as true, to

state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quotations omitted). ‘“At this early stage of the litigation,’ ‘[the Court will] accept the facts

alleged in [the pro se] complaint as true,’ ‘draw[] all reasonable inferences in [the plaintiff’s]

favor,’ and ‘ask only whether [that] complaint, liberally construed, . . . contains facts sufficient to

state a plausible [] claim.’” Shorter v. United States, 12 F.4th 366, 374 (3d Cir. 2021) (quoting

Perez v. Fenoglio, 792 F.3d 768, 774, 782 (7th Cir. 2015)). Conclusory allegations do not

suffice. Iqbal, 556 U.S. at 678. As Vargas-Marrero is proceeding pro se, the Court construes his

allegations liberally. Vogt v. Wetzel, 8 F.4th 182, 185 (3d Cir. 2021) (citing Mala v. Crown Bay

Marina, Inc., 704 F.3d 239, 244-45 (3d Cir. 2013)).

2 Because Vargas-Marrero is a prisoner, he must still pay the entire filing fee in

installments as mandated by the Prison Litigation Reform Act.

III. DISCUSSION

The vehicle by which federal constitutional claims may be brought in federal court is

42 U.S.C. § 1983. “To state a claim under § 1983, a plaintiff must allege the violation of a right

secured by the Constitution and laws of the United States, and must show that the alleged

deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S.

42, 48 (1988). In a §1983 action, the personal involvement of each defendant in the alleged

constitutional violation is a required element, and, therefore, a plaintiff must allege how each

defendant was involved in the events and occurrences giving rise to the claims. See Rode v.

Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1998); see also Dooley v. Wetzel, 957 F.3d 366, 374

(3d Cir. 2020) (“Personal involvement requires particular ‘allegations of personal direction or of

actual knowledge and acquiescence.’” (quoting Rode, 845 F.2d at 1207)).

A. Claims Against the Pennsylvania Department of Corrections

To the extent that Vargas-Marrero seeks money damages against the DOC, his claims are

not plausible. States and their agencies, like the DOC, are not considered “persons” for purposes

of § 1983. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 65-66 (1989). Furthermore, the

Eleventh Amendment bars suits against a state and its agencies in federal court that seek

monetary damages. See Pennhurst State Sch. And Hosp. v. Halderman, 465 U.S. 89, 99-100

(1984); A.W. v. Jersey City Public Schs., 341 F.3d 234, 238 (3d Cir. 2003). The Commonwealth

of Pennsylvania has not waived that immunity. See 42 Pa. Cons. Stat. § 8521(b). Accordingly,

Vargas-Marrero cannot state a plausible § 1983 claim against the DOC.

B. Official Capacity Claims

Vargas-Marrero asserts claims against all the individual Defendants – Jordan, Fedder,

Kirin, and Hale – in their official capacities. (Compl. at 2-3.) “Official-capacity suits . . .

‘generally represent only another way of pleading an action against an entity of which an officer

is an agent.’” Kentucky v. Graham, 473 U.S. 159, 165-66 (1985) (quoting Monell v. N.Y.C.

Dept. of Soc. Servs., 436 U.S. 658, 690, n.55 (1978)). Thus, official capacity claims against the

individual defendants — all of whom are employed by the DOC — are really claims against the

DOC, which is shielded from § 1983 suits by Eleventh Amendment immunity. See supra §

III.A.1; see also Downey v. Pennsylvania Dep’t of Corr., 968 F.3d 299, 309-10 (3d Cir. 2020)

(“Eleventh Amendment immunity bars actions for retroactive relief against state officers acting

in their official capacity.”). Accordingly, the Court will dismiss Vargas-Marrero’s official

capacity claims against Jordan, Fedder, Kirin, and Hale because they are barred by the Eleventh

Amendment.

C. Individual Claims Against Defendants Jordan, Fedder, and Kirin

Vargas-Marrero has named Unit Counselor Jordan, Unit Manager Fedder, and Sergeant

Kirin as Defendants. Other than naming these Defendants in the caption of the Complaint,

Vargas-Marrero makes no specific allegations against them. Rather, Vargas-Marrero generally

avers that he was denied legal representation and outside contact and asserts that Defendants

violated his rights by “not following protocols.” (Compl. at 3-4.) It is not clear to whom

Vargas-Marrero is referring in making these allegations and, accordingly they are insufficient to

allege that these Defendants had any personal involvement in the claimed constitutional

violations, especially since the Complaint only briefly describes an action committed by

Defendant Hale. See Lawal v. McDonald, 546 F. App’ x 107, 113 (3d Cir. 2014) (pleading that

relied on “repeated and collective use of the word ‘Defendants’” was ambiguous about each

Defendant’s role in the events giving rise to plaintiff’s claims).

It is possible that Vargas-Marrero named Unit Manager Fedder and Sergeant Kirin as

Defendants in this case based on their supervisory positions at SCI Phoenix. (Compl. at 2-3.)

There are “two general ways in which a supervisor-defendant may be liable for unconstitutional

acts undertaken by subordinates.” Barkes v. First Corr. Med., Inc., 766 F.3d 307, 316 (3d Cir.

2014), reversed on other grounds by Taylor v. Barkes, 575 U.S. 822 (2015). First, a supervisor

may be liable if he or she “‘with deliberate indifference to the consequences, established and

maintained a policy, practice or custom which directly caused [the] constitutional harm.” Id.

(quoting A.M. ex rel. J.M.K. v. Luzerne Cty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004)

(alteration in original)). “Second, a supervisor may be personally liable under § 1983 if he or she

participated in violating the plaintiff’s rights, directed others to violate them, or, as the person in

charge, had knowledge of and acquiesced in the subordinate’s unconstitutional conduct.” Id.; see

also Dooley v. Wetzel, 957 F.3d 366, 374 (3d Cir. 2020) (“Personal involvement requires

particular ‘allegations of personal direction or of actual knowledge and acquiescence.’” (quoting

Rode, 845 F.2d at 1207)).

By extension, supervisors are not liable solely by virtue of the fact that their subordinates

committed constitutional violations absent some measure of conduct traceable to the supervisors

themselves. See Iqbal, 556 U.S. at 676 (explaining that “[b]ecause vicarious liability is

inapplicable to . . . § 1983 suits, a plaintiff must plead that each Government-official defendant,

through the official’s own individual actions, has violated the Constitution”). Nor are

generalized allegations that a defendant is “in charge of” or “responsible for” an office or facility

sufficient to allege personal involvement in an underlying constitutional violation. See Saisi v.

Murray, 822 F. App’x 47, 48 (3d Cir. 2020) (per curiam) (“Saisi asserted that some defendants

were ‘in charge of agencies that allowed this to happen,’ and that liability stemmed merely from

defendants’ ‘belief’ that their conduct would be ‘tolerated.’ However, a director cannot be held

liable ‘simply because of his position as the head of the [agency].’” (quoting Evancho v. Fisher,

423 F.3d 347, 354 (3d Cir. 2005)).

Vargas-Marrero has not alleged plausibly that Defendants Jordan, Fedder, and Kirin,

though their action or inaction, violated his constitutional rights. He has not specified any

personal conduct, nor has he alleged that any of these Defendants directed subordinates to violate

his rights or knew of but acquiesced in constitutional violations committed by subordinates. In

sum, Vargas-Marrero has not alleged a plausible basis for these Defendants’ liability.

Accordingly, Vargas-Marrero’s claims against Jordan, Fedder, and Kirin will be dismissed

without prejudice and with leave granted to file an amended complaint if Vargas-Marrero is able

to cure the defects the Court has identified.

D. Individual Claims Against Defendant Hale

The Court construes Vargas-Marrero’s allegation that Defendant spit in his food as a

challenge to his conditions of confinement. The Eighth Amendment governs claims brought by

convicted inmates challenging their conditions of confinement. Hubbard v. Taylor, 399 F.3d

150, 166 (3d Cir. 2005). Unconstitutional punishment typically includes both objective and

subjective components. Stevenson v. Carroll, 495 F.3d 62, 68 (3d Cir. 2007). The objective

component requires an inquiry into whether “the deprivation [was] sufficiently serious” and the

subjective component asks whether “the officials act[ed] with a sufficiently culpable state of

mind[.]” Id. (citing Wilson v. Seiter, 501 U.S. 294, 298 (1991); Bell, 441 U.S. at 538-39, 539

n.20). In general, a prisoner must assert that prison officials acted with deliberate indifference,

meaning that they consciously disregarded a serious risk to the detainee’s health or safety. See

Wilson v. Seiter, 501 U.S. 294, 298-99 (1991); see also Wilson v. Burks, 423 F. App’x 169, 173

(3d Cir. 2011) (per curiam) (“‘[T]he official must both be aware of facts from which the

inference could be drawn that a substantial harm exists, and he must also draw that inference.’”)

(quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)); cf. Edwards v. Northampton Cty., 663

F. App’x 132, 135 (3d Cir. 2016) (per curiam) (“[W]e agree with the District Court and find no

reason to apply a different standard here as we have applied the ‘deliberate indifference’ standard

both in cases involving prisoners and pretrial detainees.” (internal citations omitted)).

To establish an Eighth Amendment violation based on the conditions of confinement, a

prisoner must establish that prison officials’ acts or omissions denied him “the minimal civilized

measure of life’s necessities.” Rhodes v. Chapman, 452 U.S. 337, 347 (1981); Betts v. New

Castle Youth Dev. Ctr., 621 F.3d 249, 256 (3d Cir. 2010) (stating that the Eighth Amendment’s

prohibition of cruel and unusual punishment requires that prison officials provide “humane

conditions of confinement.”). Such necessities include food, clothing, shelter, medical care, and

reasonable safety. Tillman v. Lebanon Cnty. Corr. Facility, 221 F.3d 410, 418 (3d Cir. 2000). A

prisoner must also establish that the defendants acted with deliberate indifference. Farmer, 511

U.S. at 835.

The Eighth Amendment protection requires that prisoners be served “nutritionally

adequate food that is prepared and served under conditions which do not present an immediate

danger” to their health and well-being. Duran v. Merline, 923 F. Supp. 2d 702, 720 (D.N.J.

2013) (citing Robles v. Coughlin, 725 F.2d 12, 15 (2d Cir. 1983) (quoting Ramons v. Lamm, 639

F.2d 559, 571 (10th Cir. 1980)); Mora v. Camden Cty., Civ. A. No. 09-4183, 2010 WL 2560680,

at *8 (D.N.J. June 21, 2010)). It has been held that “prison officials may violate the Eighth

Amendment by serving unsanitary, spoiled or contaminated food if the prisoner also alleges that

he or she suffered a distinct and palpable injury.” See DeJesus v. Carey, Civ. A. No. 15-2504,

2016 WL 6134540, at *3 (M.D. Pa. Oct. 20, 2016) (citing Robles, 725 F.2d at 15); Escobar v.

Mora, 496 Fed. Appx. 806 (10th Cir. 2012) (inmate stated a claim when he alleged that he lost

thirty pounds and suffered psychological and mental injury because officer spit in food).

However, food tampering has also been found not to state a claim where no physical injury has

been alleged. See Rieco v. Moran, 633 Fed. Appx. 76 (3d Cir. 2015) (inmate did not state an

Eighth Amendment food tampering claim where no injury alleged).

In the instant case, Vargas-Marrero alleges a single incident but does not allege that he

suffered any physical injury from the incident. He also does not allege that he consumed the

allegedly tainted food. The Prison Litigation Reform Act requires a prisoner to “demonstrate

physical injury before he can recover for mental or emotional injury.” Mitchell v. Horn, 318

F.3d 523, 533 (3d Cir. 2003) (citing 42 U.S.C. § 1997e(e)). Because he has not established

sufficiently serious deprivation to satisfy the objective element of the Eighth Amendment

analysis, and fails to allege he suffered any physical injury, Vargas-Marrero has not alleged a

plausible Eighth Amendment claim based on possible contamination to his food. However,

because the Court cannot say at this time that Vargas-Marrero can never assert a claim based on

the contamination of his food, he will be permitted the opportunity to amend his pleading if he

can cure these defects.

E. Access to Courts

Assuming arguendo that Vargas-Marrero properly alleged personal involvement against

an appropriate Defendant, his allegation that he was denied legal representation (see Compl. at 3)

is nonetheless conclusory and therefore not plausible. Without further explanation, Vargas-

Marrero alleges that he was denied legal representation. (Compl. at 3.) The Court construes this

statement as an allegation that Vargas-Marrero has been denied access to the courts. “Under the

First and Fourteenth Amendments, prisoners retain a right of access to the courts.” Monroe v.

Beard, 536 F.3d 198, 205 (3d Cir. 2008). “Where prisoners assert that defendants’ actions have

inhibited their opportunity to present a past legal claim, they must show (1) that they suffered an

‘actual injury’ -- that they lost a chance to pursue a ‘nonfrivolous’ or ‘arguable’ underlying

claim; and (2) that they have no other ‘remedy that may be awarded as recompense’ for the lost

claim other than in the present denial of access suit.” Id. (quoting Christopher v. Harbury, 536

U.S. 403, 415 (2002)); see also Tinsley v. Giorla, 369 F. App’x 378, 381 (3d Cir. 2010) (A

pretrial detainee “making an access to courts claim is required to show that the denial of access

caused actual injury.”). Furthermore, “the underlying cause of action, . . . is an element that must

be described in the complaint.” Christopher, 536 U.S. at 415.

Vargas-Marrero has failed to plausibly allege any actual injury as a result of the

Defendants’ conduct that could equate to a denial of access to the courts. Additionally, Vargas-

Marrero has not alleged what underlying nonfrivolous claims he was unable to pursue as a result

of any Defendant’s actions. The Court will dismiss these claims to the extent they are alleged.

See, e.g., Monroe, 536 F.3d at 206 (plaintiffs’ allegations that “they lost the opportunity to

pursue attacks of their convictions and civil rights claims” without “specify[ing] facts

demonstrating that the claims were nonfrivolous” did not state a claim); see also Talley v.

Varner, 786 F. App’x 326, 328 (3d Cir. 2019) (per curiam) (no denial of access to the courts

where inmate “failed to allege what underlying nonfrivolous claims he was unable to pursue due

to [a] two-week delay” caused by the defendants); Williams v. Sec’y Pennsylvania Dep’t of

Corr., 566 F. App’x 113, 116 (3d Cir. 2014) (per curiam) (“Here, Williams alleged only that he

was told he could not send mail without having sufficient funds. He has not alleged that he lost a

claim because of the supposed denial, and therefore he has not made out an access-to-the-

courts claim.”).

F. Denial of Phone Calls and Visitation

Vargas-Marrero alleges that he has been denied outside contact but provides no further

factual allegations with regard to these claims. (Compl. at 3.) Although prisoners may have a

limited First Amendment right to communicate with family and friends, see Overton v. Bazzetta,

539 U.S. 126, 131-32 (2003), “prisoners ‘ha[ve] no right to unlimited telephone use,’ and

reasonable restrictions on telephone privileges do not violate their First Amendment rights.”

Almahdi v. Ashcroft, 310 F. App’x 519, 522 (3d Cir. 2009) (per curiam) (quoting Washington v.

Reno, 35 F.3d 1093 (6th Cir. 1994)); Randall v. Cty. of Berks, Pa., Civ. A. No. 14-5091, 2015

WL 5027542, at *17 (E.D. Pa. Aug. 24, 2015) (noting that “a pretrial detainee does not have

unfettered telephone access”). Similarly, inmates do not generally enjoy a constitutional right to

visitation. See Kentucky Dep’t of Corrs. v. Thompson, 490 U.S. 454, 460 (1989) (no due process

right to unfettered visitation); Block v. Rutherford, 468 U.S. 576, 585-88, (1984) (pretrial

detainees have no constitutional due process right to contact visits).

Vargas-Marrero has failed to allege other than in conclusory terms that he has been

outside contact. Therefore, he has again failed to state plausible claims for constitutional

violations under the Iqbal standard. See Aruanno v. Johnson, 568 F. App’x 194, 195 (3d Cir.

2014) (per curiam) (conclusory allegations “concerning [prisoner’s] lack of phone access to

friends and family” failed to state a claim); Almahdi, 310 F. App’x at 522 (rejecting First

Amendment claim based on telephone restrictions where “Almahdi makes no assertion—and

there is no evidence — that he lacked alternative means of communicating with persons outside

the prison”) (citing Valdez v. Rosenbaum, 302 F.3d 1039, 1048 (9th Cir. 2002)); Riley v. Ortiz,

Civ. A. No. 17-3233, 2017 WL 4228064, at *2 (D.N.J. Sept. 22, 2017) (“A loss of visitation

privileges is an ordinary incident of prison life.”) (citations omitted).

IV. CONCLUSION

For the foregoing reasons, the Court will grant Vargas-Marrero leave to proceed in forma

pauperis and dismiss his Complaint for failure to state a claim, pursuant to 28 U.S.C. §

1915(e)(2)(B)(ii). Vargas-Marrero’s claims against the Pennsylvania Department of Corrections

and his official capacity claims will be dismissed with prejudice because the defects in those

claims cannot be cured. Vargas-Marrero’s remaining claims will be dismissed without prejudice

to allow amendment in the event that he can allege sufficient facts to cure the defects identified

in those claims. Cognizant of Vargas-Marrero’s pro se status, the Court will grant him an

opportunity to “flesh out [his] allegations by . . . explaining in the amended complaint the ‘who,

what, where, when and why’ of [his] claim.” See Davis v. Internal Revenue Serv., No. 21-4728,

2022 WL 407639, at *3 (E.D. Pa. Feb. 9, 2022) (citing Gambrell v. S. Brunswick Bd. of Educ.,

No. 18-16359, 2019 WL 5212964, at * 4 (D.N.J. Oct. 16, 2019)). Any amended complaint

should clearly describe the factual basis for Vargas-Marrero’s claims against the relevant

defendant or defendants and how each defendant was involved in the alleged denial of his

constitutional rights. An appropriate order follows.

BY THE COURT:

/s/ Juan R. Sánchez

JUAN R. SÁNCHEZ, C.J.